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Insights into Editorial: Supreme Court stays Andhra HC order to study ‘constitutional breakdown’ in State

 

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Context:

The Supreme Court stayed an Andhra Pradesh High Court order intending to embark on a judicial enquiry into whether there is a constitutional breakdown in the State machinery under the present government, requiring a declaration of President’s rule.

“Has anybody seen an order like this before… As the apex court, we find this disturbing. We are staying this order… We will take up this case immediately after the vacations,” Chief Justice of India (CJI), heading a three-judge Bench, observed.

Solicitor General asked why the High Court “should go into whether there is a constitutional breakdown in the State”.

The government, represented by advocate, said it was not up to the High Court to enquire and recommend President’s rule in a State.

Brief Background for High Court comments:

On October 1, the High Court, while hearing a clutch of habeas corpus petitions, said “on the next hearing date, the learned senior counsel appearing on behalf of the State may come prepared to assist the Court as to whether in the circumstances which are prevailing in the State of Andhra Pradesh, the Court can record a finding that there is a Constitutional breakdown in the State or not”.

The state government, in its appeal, said the High Court “in an unprecedented manner and without any basis or pleadings by any of the parties to that effect, has framed the… question”.

The state government has been on a collision course with the High Court and Chief Minister sent a letter to the CJI on October 6, alleging judicial impropriety on the part of some judges of the High Court and senior Supreme Court judge.

Andhra Pradesh government side arguments regarding findings of Constitutional Breakdown:

  1. The state said “under the scheme of the Constitution, it is Article 356 that deals with failure of Constitutional machinery in a State.
  2. Under this Article, if the President, on receipt of a report from the Governor of a State or otherwise, is satisfied that a situation has arisen in which the government of the State cannot be carried on in accordance with the provisions of the Constitution, the Hon’ble President can impose President’s Rule”.
  3. This is a power exclusively vested in the Executive. The power in this regard, like sending a report either to the Hon’ble President or to the Hon’ble Governor or to record a finding in that regard, cannot be exercised by the Judiciary.
  4. The appeal contended that the High Court order is “uncalled for; violative of the basic structure of the Constitution; and, it is most respectfully submitted, grossly misconceived”.
  5. The state pointed out that “under the Constitutional framework, it is not for the Courts to decide as to whether there is a Constitutional breakdown in a State” and “the said power has been specifically conferred upon a different Constitutional Authority and rightly so”.
  6. The said fact is essentially an executive function and is necessarily required to be based on a detailed factual analysis. The courts simply do not have any means to decide such a question.
  7. According to the state, the High Court order “is a serious encroachment on the powers of the executive as enumerated under the Constitution and is thus violative of the doctrine of separation of powers”.

What is Article 356 of Indian Constitution?

  1. It is Article 356 that deals with failure of constitutional machinery in a State… This is a power [to impose President’s rule] exclusively vests in the Executive.
  2. The power in this regard, like sending a report either to the Hon’ble President or to the Hon’ble Governor or to record a finding in that regard, cannot be exercised by the judiciary.
  3. Article 356 of the Constitution of India gives President of India the power to suspend state government and impose President’s rule of any state in the country “if he is satisfied that a situation has arisen in which the government of the state cannot be carried on in accordance with the provisions of the Constitution”.
  4. It is also known as ‘State Emergency’ or ‘Constitutional Emergency’.
  5. Upon the imposition of this rule, there would be no Council of Ministers.
  6. The state will fall under the direct control of the Union government, and the Governor will continue to head the proceedings, representing the President of India.
  7. The “unprecedented” order of the High Court, on October 1, came while deciding habeas corpus petitions filed by relatives of persons remanded in judicial custody or on bail.

The Executive and the Judiciary in the Indian constitution:

The rapport between the judiciary and the executive has always been sensitive.

A society governed by Rule of law always demands for separation of the judiciary from the executive.

The rule of law is always exposed to the risk of being intruded by the executive.

Therefore, proper functioning of a democracy requires a clear separation of the two.

The primary function of the judiciary is the administration of justice and justice can never be rightly administered without the fear or favour unless there is a separation of the judiciary from the executive.

Article 50 of the Constitution provides that “The State shall take steps to separate the judiciary from the executive in the public services of the State.”

The intention of the developers of the Constitution was to bring about changes wherever possible and shall be done immediately, without any delay, and where immediate operation of this principle is not possible, it shall however be accepted as an imperative responsibility.

The Constitution of India lays down a functional separation of the organs of the State in the following manner:

Article 50: State shall take steps to separate the judiciary from the executive. This is for the purpose of ensuring the independence of judiciary.

Article 122 and 212: validity of proceedings in Parliament and the Legislatures cannot be called into question in any Court. This ensures the separation and immunity of the legislatures from judicial intervention on the allegation of procedural irregularity.

Judicial conduct of a judge of the Supreme Court and the High Courts’ cannot be discussed in the Parliament and the State Legislature, according to Article 121 and 211 of the Constitution.

Articles 53 and 154 respectively, provide that the executive power of the Union and the State shall be vested with the President and the Governor and they enjoy immunity from civil and criminal liability.

Article 361: the President or the Governor shall not be answerable to any court for the exercise and performance of the powers and duties of his office.

Conclusion:

According to AP government petitioner, It is needless to mention that the constitutional courts do not have any judicially discoverable and manageable standards to determine if there has been a constitutional breakdown.

The Constitution of India expressly provides for a system of checks and balances in order to prevent the arbitrary or capricious use of power derived from the said supreme document.

Though such a system appears dilatory of the doctrine of separation of powers, it is essential in order to enable the just and equitable functioning of such a constitutional system.

By giving such powers, a mechanism for the control over the exercise of constitutional powers by the respective organs is established.

This clearly indicates that the Indian Constitution in its plan does not provide for a strict separation of powers.

Instead, it creates a system consisting of the three organs of Government and confers upon them both exclusive and overlapping powers and functions. Thus, there is no absolute separation of functions between the three organs of Government.